Roberts's rule: Conservative but incremental

Tom Curry National affairs writer • Profile • E-mail

WASHINGTON - In Monday's Supreme Court rulings, Chief Justice John Roberts clearly demonstrated he is the conservative leader of a conservative-leaning court.

In two of the court's high-profile cases, Roberts showed he will take an incremental approach to curbing some of the court's precedents.

The chief justice wrote the majority opinion in two cases, both involving the First Amendment right to free speech; one on the regulation of campaign ads, the other on a high school student’s unauthorized banner.

Perhaps giving him some political cover, Roberts had two uncompromising conservatives on his right flank — Justices Antonin Scalia and Clarence Thomas, who called for drastic action — simply over-ruling two of the high court's precedents.

Despite grumbling from Scalia and Thomas that Roberts decisions didn't go far enough, the chief justice assembled a five-justice majority in the two First Amendment cases.

He even got a sixth vote from one of the liberal wing, Justice Stephen Breyer, who concurred on one decision.

When can TV ads be banned?
In a case testing whether the 2002 campaign reform law could bar certain types of TV ads, Roberts supported the First Amendment right of a Wisconsin Right to Life group to air ads urging two senators to oppose the filibustering of judicial nominees.

The campaign reform law had banned certain TV ads because they were paid for with the non-profit group’s general treasury funds, referred to a specific candidate for public office in an upcoming election, and would have aired in the law's 30-day “blackout period” prior to the primary election.

The candidate in question: Sen. Russ Feingold, D- Wisc., co-sponsor of the 2002 law.

“Discussion of issues cannot be suppressed simply because the issues may also be pertinent in an election,” Roberts wrote. “Where the First Amendment is implicated, the tie goes to the speaker, not the censor.”

But Scalia, in his concurring opinion, said the court ought to have gone further and overturned part of its 2003 McConnell decision, which had upheld the campaign finance law.

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After all, Scalia said, "This Court has not hesitated to overrule decisions offensive to the First Amendment... Overruling a constitutional case decided just a few years earlier is far from unprecedented." Thomas and Justice Anthony Kennedy joined Scalia in his concurrence.

But writing on the legal blog, SCOTUSblog, constitutional scholar Prof. Richard Pildes of the NYU School of Law, wrote that the ruling “accomplishes much the same result as would a formal overruling” of the court’s decision in 2003 which had upheld the McCain-Feingold law.

Vehemently dissenting in the campaign finance case, Justice David Souter said, “After today, the ban on contributions by corporations and unions and the limitation on their corrosive spending when they enter the political arena" will be "open to easy circumvention.”

But, he added, “The understanding of the voters and the Congress that this kind of corporate and union spending seriously jeopardizes the integrity of democratic government will remain. The facts are too powerful to be ignored, and further efforts at campaign finance reform will come.”

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The campaign finance ruling drew clashing reactions from Sen. John McCain, R- Ariz., a co-sponsor of the 2002 law, and one of his rivals for the 2008 GOP presidential nomination, Mitt Romney.

McCain said in statement that Monday’s decision “does not affect the principal provision of the Bipartisan Campaign Reform Act, which bans federal officeholders from soliciting soft money contributions for their parties to spend on their campaigns.”

But Romney exulted that “Today's decision restores, in part, to the American people a right critical to their freedom of political participation and expression.”

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